Child Welfare Court Hearings 624-05-15-13

(Revised 2/1/22 ML #3657)

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A legal proceeding is a procedure or action established in a court of law to acquire a right, interest or benefit or to reinforce a remedy. Foster care case managers will engage in various types of court hearings.

 

  1. Temporary Custody Order (TCO)

If present danger exists and out of home placement is warranted, agencies shall make reasonable efforts to prevent removal by seeking relatives or requesting shelter care for the children, prior to requesting a temporary custody order (TCO). The purpose of the temporary custody order is to remove the child from an unsafe situation with authorization from Juvenile Court until a shelter care hearing can occur.

 

Highlights:

  1. A removal from the home can be authorized by law enforcement or a TCO must be issued by the Director of Juvenile Court (or designee).
  2. If removal is authorized verbally, a TCO must be in writing within 24 hours.
  3. Paperwork Requirements
  1. Agency affidavit to request shelter care must be submitted to the Juvenile Court asap.
  2. Juvenile Court will need documentation to create a court file and schedule a shelter care hearing.
  1. Shelter Care Hearing

The purpose of the shelter care hearing is to determine whether there is probable cause to believe the child is in need of protection or delinquent and if shelter care is required to protect the child. The shelter care hearing must scheduled no later than 96 hours before a judge, with the exception of holidays and weekends.

 

Highlights:

  1. The shelter care hearing will determine:
  1. If the child shall remain in out of home placement under the care, custody, and control of a public agency;
  2. If it was “contrary to the welfare” for the child to remain in the home upon removal; and
  3. If reasonable or active efforts were made to prevent the removal.
  1. An adjudication must occur within 60 days from date of removal (within 30 days if ICWA applies). Petitioner has 30 days from first placement to file a petition. However, in order to ensure proper service of the documents on the parties as required by court rules the filing of the petition should occur within the first 15 days.
  1. If the petition is not filed within 30 days of the shelter care hearing, the child must be released from shelter care.
  2. Some jurisdictions have an initial appearance on the petition, which is held within 30 days of removal. If that cannot be done, the shelter care order may be extended, but the required judicial determinations are required.
  1. Paperwork Requirements
  1. Agency case managers must collaborate with local State’s Attorney office to verify the amount of time needed to prepare court documentation and service of process on all parties.
  2. In most cases, the affidavit in support of the child in need of protection petition must be submitted to State’s Attorney office as directed by the local State’s Attorney or at least 10 days before the petition is to be filed with Juvenile Court.
  1. Initial Appearance

This is the first time the parties of the case will appear in court to respond to the petition.

  1. The Judicial Officer will:
  1. Review the proceedings,
  2. Acknowledge the parties who are present, and
  3. Advise the respondents of:
  1. The allegations,
  2. Their rights (counsel, admit, deny, go on to trial),
  3. The possible outcomes of the proceedings, and
  4. Consequences of an admission or denial.
  1. Elicit a response (admission or denial) from the respondents.
  1. If they deny, then a pretrial conference, status conference, adjudication hearing or trial is scheduled.
  2. If they admit, then either a disposition hearing will be held at that time or the case will be continued for a later dispositional hearing.
  1. Paperwork Requirements
  1. Agency must work with the State’s Attorney to ensure no further information is required to be filed with the court prior to the hearing.
  1. Adjudication Hearing

The purpose of the adjudication hearing is to either accept admission to the allegations or to hear evidence submitted to prove the allegations as listed in the petition.

 

Highlights:

  1. Evidence of need for protection must be proven by clear and convincing evidence:
  1. Court must make findings as to whether the child is in need of protection,
  2. Evidence of need for protection must be clear and convincing,
  3. Admission of need for protection,
  4. If need for protection found; move to disposition hearing.
  1. Evidence of each delinquent act must be found by proof beyond a reasonable doubt.
  1. The hearing on the petition must be held and findings made within 60 days of initial removal (30 days if ICWA applies), unless a continuance is granted by the court under Rule 9 of the ND Rules of Juvenile Procedure.

  2. In most cases, adjudication and dispositional hearing will be held at the same time.

  3. Paperwork Requirements
  1. Agency must work with the State’s Attorney to ensure no further information is required to be filed with the court prior to the hearing.
  1. Dispositional Hearing

The purpose of the dispositional hearing is best suited to the protection and physical, mental, and moral welfare of the child. This will include whether to permit the child to reside with the child’s parents, guardian or other custodian, subject to conditions and limitations as the court subscribes including supervision as directed by the court for the protection of the child such as a safety or treatment plan. The court may also consider whether it is in the best interests of the child to return home if the child was removed in a shelter care hearing prior to disposition.

 

Highlights:

  1. This hearing may be combined with the adjudication hearing.
  2. The court may receive evidence from any party relating to the disposition. The court listens to evidence regarding what services the parents have participated in to address the issues that brought the case before the court.
  3. The court will also hear evidence regarding the child’s placement, well-being, and service needs. The court looks at the efforts made by the agency to assist the family, and the best interests of the minor.
  4. In determining who shall have custody of a child at the time of disposition, the court will review what is in the child’s best interest.
  5. In delinquent cases:
  1. The court will hear evidence as to whether the child is in need of treatment or rehabilitation.
  2. The burden of proof at this stage is clear and convincing evidence standard.
  1. In child in need of protection cases:
  1. The court can make any disposition listed at 27-20.3-16 which is “best suited to the protection and physical, mental, and moral welfare of the child”.
  1. Paperwork Requirements
  1. Agency must work with the State’s Attorney to ensure no further information is required to be filed with the court prior to the hearing.
  1. Review of Custody Hearing

At any time, the child, parents or any party can request a review hearing as it is not required that a review be initiated by the custodial agency. The purpose of the hearing is to update the court on the progress of the case planning, the court to review the respondent’s request for release or any other issue which the respondent is requesting be reviewed by the court.

 

Highlights:

  1. An agency can request for an early release of custody at this time if the family has met the terms of the case plan or can request the case be extended until the future permanency hearing to allow more time to achieve permanency goals.
  2. A review hearing can also be combined with a permanency hearing and held as one hearing in judicial court proceedings.
  3. Paperwork Requirements
  1. Agency case managers must collaborate with local State’s Attorney office to verify the amount of time needed to prepare court documentation.
  2. In most cases, the affidavit must be submitted to the state’s attorney at least 14 days before the needed hearing date in order to provide time for state’s attorney review, the filing of the necessary documents, and the service of the paperwork on the parties in the case.
  1. Permanency Hearing

The purpose of the permanency hearing is to monitor the progress of the case goals set forth in the original order addressing the issues that brought the child into foster care.

 

Highlights:

  1. The court will monitor the well-being of the child and carefully review issues regarding the child’s placement, service needs, education, and family visitation and determine whether the original order should be extended for an additional period of time.
  2. If permanency is not achieved within 12 months of removal, agencies must obtain judicial determinations that out of home care is required and that reasonable/active efforts were made to finalize the permanency plan and to indicate what the efforts were and the goal in place. Permanency goals may be either reunification, adoption, legal guardianship, placement with a fit and willing relative, or placement of another planned permanent living arrangement.
  3. A permanency hearing and a review hearing can be combined and held as one hearing in judicial court proceedings.
  4. Paperwork Requirements
  1. Agency case managers must collaborate with local State’s Attorney office to verify the amount of time needed to prepare court documentation.
  2. In most cases, the affidavit must be submitted to State’s Attorney office at least 90 days prior to order expiration in efforts for the State’s Attorney to file the notice of permanency or request for review timely with the court.
  1. 18+ Continued Care Permanency Hearing

The purpose of the hearing is to authorize placement and care responsibility to a public agency for a youth requesting continued foster care who meet specific eligibility. 18+ continued cases are no longer under the public custody of an agency.

 

Highlights

  1. 18+ Continued Care orders must be a permanency hearing and obtain permanency findings.
  2. All 18+ cases must have a permanency hearing no later than 90 days of the effective date on the SFN 60, 18+ Continued Care Agreement.
  3. Paperwork Requirements
  1. Agency case managers must collaborate with local State’s Attorney office to verify the amount of time needed to prepare court documentation.
  2. In most cases, the affidavit must be submitted to State’s Attorney office at least 14 days before the petition or notice of permanency is to be filed with the court.
  1. Termination of Parental Rights (TPR) Hearing

The purpose of such a hearing is to review a request to terminate the parental rights of the parents in cases with the most extreme forms of need for protection. This may be the case where the child has been ‘abandoned’ by the parents (27-20.1-01(1)) or where the child has been subjected to “aggravated circumstances”, i.e. extreme forms of abuse or neglect. (27-20.1-01(3)) or when the child is and has been in need of protection and all indications are that the need for protection will continue to the harm of the child.

 

Highlights:

  1. A TPR is a complicated proceeding; the rights of all parties are given great merit because of the finality of the outcome.
  2. Judge will advise parties of their right to counsel, appoints counsel as necessary, accept admissions or denials on the TPR petition and order parents to the adjudicatory hearing.
  3. If a parent or legal custodian is absent, the court will evaluate the sufficiency of service and notice and make a determination as to whether the parent has defaulted to the TPR for failure to appear or whether another advisory hearing date should be set for that parent.
  4. In order for a termination of parental rights to be granted, the evidentiary standard of clear and convincing or beyond a reasonable doubt (ICWA) must be met to prove the child is in need of protection, and:
  1. The need for protection is likely to continue or will not be remedied; and
  2. The child will suffer serious physical, mental, moral, or emotional harm because of this; or
  3. The child has been in foster care for at least 450 out the previous 660 nights (can be less than 450 days); or
  4. The parents’ consent to the termination.
  1. Paperwork Requirements
  1. Agency case managers must collaborate with local State’s Attorney office to verify the amount of time needed to prepare court documentation.
  2. The affidavit must be submitted to State’s Attorney office at least 60 days and some areas 90 days before the petition for termination of parental rights is filed.
  1. Court Order Continuances

Throughout the life of the case, there are times when the court “continues” the child’s order without a hearing, this is typically done to ensure all parties have an attorney, etc. A continuance is an allowable function of the court, however the timeframe in which a continuance is granted is important for foster care cases.

  1. Shelter Care/Disposition/Review Orders: If a court has made the requisite “contrary to the welfare” and “reasonable or active efforts to prevent removal” findings, a continuance issued under Rule 9 of the N.D. Rules of Juv. Pro. can occur and will, unless otherwise ordered, continue the existing custodial order. Continuances generally carry forward the existing judicial determinations, which is acceptable when the child remains in public custody and the case is not due for a permanency review.
  2. Permanency Orders: If a case is due for 12 month permanency review, a court can make the decision to continue an order to maintain custody, however, the case must receive new permanency judicial determinations before the last day of the 13th month. Foster care federal regulations requires judicial determinations from the court that the agency has made reasonable efforts to finalize the permanency plan for the child. A continuance of a prior order does not bring forward the required new judicial determination, nor does a continuance allow the participation of the relevant parties in a hearing to address permanency. If the new (annual) permanency judicial determinations are not obtained by the end of the 13th month, NDDHS cannot make a foster care payment on behalf of the child.
  1. Hearing Notices

Reasonable notice of court hearings and the opportunity to be heard for parties affected by the case must be granted. Initially, the agency granted temporary custody is required to notify all relevant parties. When ongoing hearings occur, the Juvenile Court and custodial agencies collaboratively provide reasonable notice, either oral or written, to the child, the child's parents, guardian, or other custodian (which could include the foster parent or caregiver).